Request By:
Mr. E. P. Barlow Ropp
Attorney at Law
East Public Square
P.O. Box 438
Glasgow, Kentucky 42141
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The question of what becomes of documents left with the county clerk to record is raised.
Specifically, your question is as follows:
"I would particularly appreciate your opinion as to whether a copy of articles of merger presented to the clerk under KRS 271A.370 should be retained by the clerk or returned to the surviving corporation after recording. It would appear that KRS 271A.370(3) contemplates the possibility of recording articles of merger in more than one (1) county. If so, and if each county court clerk retained a copy, this could be something of a problem. Therefore, I would appreciate your advice on this matter, particularly since I have a controversy with a county court clerk concerning this matter."
KRS 271A.370 reads:
(1) Upon such approval, articles of merger or articles of consolidation shall be executed in triplicate by each corporation by its president or a vice-president and by its secretary or an assistant secretary, and verified by one of the officers of each corporation signing such articles, and shall set forth:
(a) The plan of merger or the plan of consolidation; and
(b) As to each corporation, the date and manner of adoption of such plan.
(2) Triplicate originals of the articles of merger or articles of consolidation shall be delivered to the secretary of state. If the secretary of state finds that such articles conform to law, he shall, when all fees and taxes therefor have been paid as prescribed by law:
(a) Endorse on each of such triplicate originals the word 'Filed,' and the month, day and year of the filing thereof;
(b) File one (1) of such triplicate originals in his office; and
(c) Issue a certificate of merger or a certificate of consolidation to which he shall affix one (1) other triplicate original.
(3) The certificate of merger or certificate of consolidation, together with the two (2) triplicate originals of the articles of merger or articles of consolidation, shall be returned to the surviving or new corporation, as the case may be, or its representative. One (1) of such triplicate originals shall then be filed with and recorded by the county clerks in the counties in which is situated the registered office of the corporations."
Under KRS 271A.370(3), one (1) of the triplicate originals of the corporate articles of merger or consolidation must be filed by the surviving or new corporation with and recorded by the county clerks in the counties in which is situated the registered office of the corporation affected.
KRS 382.240 relates to the delivery of instruments recorded in the county clerk's office. It reads:
"Each instrument that is recorded shall be delivered to the party entitled thereto. The county clerk shall require prepayment of postage for delivery of said instruments at the time they are left for record in his office. If the county clerk is unable to locate the parties entitled thereto, he shall retain the instruments for at least two (2) years. The clerk may then destroy the instruments provided that he shall first make the following announcement by public notice in the newspaper of the largest circulation in the county: 'Legal instruments which have been filed for record in the (name of county) county clerk's office and which have been in the custody of the clerk for over two (2) years must be claimed by the persons entitled thereto within thirty (30) days, or they shall be destroyed.' The date of the notice and the name of the clerk shall be appended to the notice. Thirty (30) days after the appearance of the public notice, the county clerk may destroy the instruments."
After the survivor or new corporation sends one (1) of the triplicate originals of the articles of corporate merger or consolidation to the county clerk for filing and recording, and after the clerk so records the instrument, the clerk must deliver the triplicate original to the survivor or new corporation, pursuant to KRS 382.240. The clerk shall require prepayment of postage for that purpose. Where the clerk cannot locate the party or parties entitled to such instrument, he shall retain such instrument for at least two (2) years. After two (2) years, without being able to locate the proper party entitled to the instrument, the clerk may destroy the instrument, provided he enters the notice in the newspaper required by the statute that the person entitled to the instrument held by the clerk for over two (2) years must claim the instrument within thirty (30) days.
Where the county clerk returns the triplicate original of the articles of merger or consolidation, after recording the same, to the surviving or new corporation, the triplicate original may then be sent to other county clerks for recording, as indicated above. It is merely the same procedure over again.
As early as 1893, Carrol's Kentucky Statutes, § 519, required that each instrument recorded by the clerk must be delivered to the party entitled thereto. Section 519 of Carroll's Statutes became, in the 1942 Revision of the Kentucky Statutes, KRS 382.240. That statute was amended in 1982 (Ch. 323, § 1). However, the express and explicit provision that recorded instruments must be returned to the party entitled thereto remained the same. The courts would be bound by this plain and precise language.
H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937).
The county clerk cannot retain such recorded instrument where the person entitled to the instrument is known and located.